So who exactly had their lunch stolen in Apple v Samsung (v Apple)?

When a big kid stole my lunch, I had no lunch.  If it wasn’t for the charity of the teachers, I would have gone hungry. But when Samsung stole Apple’s intellectual property, Apple still lived on a diet of pork and caviar, for...

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When a big kid stole my lunch, I had no lunch.  If it wasn’t for the charity of the teachers, I would have gone hungry.

But when Samsung stole Apple’s intellectual property, Apple still lived on a diet of pork and caviar, for Apple is today the world’s most valuable company.

Sat on cash reserves sufficient to solve the Greek debt crisis Apple is rich, in no small part, thanks to the iPhone and iPads nicked by rival Samsung several years ago.

I’m uneasy about nearly all aspects of this ruling.  Is the patent system in relation to software relevant or fit for purpose?  Is the jury’s decision, even given the shocking state of US patent law, even right?

Plus the massive legal costs involved in bringing such a patent action effectively bar all but the largest companies from redress.  

I look at any one of a hundred small innovative tech companies and see they could not possibly have mounted a challenge of this kind even if they’d had their source code stolen at gunpoint.

Lawyers, after all, need their lunch.

Not that I’m saying for a minute that the rich should be denied justice simply because they are rich. 

I’m saying the patent system as we see it today in relation to software keeps the rich rich and the greatest legal minds occupied with what in reality amounts to trivia.  Surely some of these fantastic intellects would be better employed solving real world problems?!

Plus with intellectual property the concept of justice is somewhat subjective.  IP is an artificial construct created with one purpose: to encourage and reward innovation.

But not at all costs.  With IP there’s a balance; a trade-off between rewarding innovators and preventing market abuse through artificial monopoly. 

Monopolies after all harm consumers; and, in all likelihood, stunt innovation.

Monopolies restrict the ability of a third party to take an existing idea and run with it, whilst rewarding the original inventor for banging out the exact same patented product unchanged for the next twenty years.

Just because you were first to do something doesn’t mean you have a god given right to be the only person to do that thing forever.  And because you were the first in all likelihood means you won’t be the best.

This was known from the very early days of patent law, which is why the original patent systems strived to create a balance; to grant time-limited protection in specific cases to protect genuinely innovative advances.

IP law, a government-granted artificial monopoly over an invention, was created for a mechanical era; an era where it would cost (allowing for inflation) hundreds of millions of pounds to kit-out a factory to produce a new product - a new product untested in the market.

Semiconductor manufacturers aside (who still invest equivalent sums, at risk, kitting out fabrication plants) the tech market is today very different to that of the industrial era.

Innovation of consumer products is so fast paced that even a five year monopoly over an “invention” seems excessive in some cases.  Plus the concept of invention and inventive step so ingrained in patent law has become corrupted, for what seems inventive to a patent clerk often appears bleeding obvious to a software engineer.

The other well-documented down side to monopolies is consumer harm.  Apple has got rich - very rich - off you, the consumer.  I have no issue with this in itself, when a company makes good products which people want, and continue to do so, they deserve to make a good profit for their shareholders.

In any market where we see large profits we should ask ourselves is the market working?  Are these profits a fair reward for investment in innovation or are they excessive; the result of a monopolistic market abuse?

Before yesterday’s ruling in Apple v Samsung, Samsung v Apple(!) we knew the answer to the above question.  Apple’s profits came in spite of fierce competition in the sector, therefore they were fair and not a symptom of monopoly or other market abuse.

Part of me seriously wonders whether Apple’s financial health may in fact be due to the brisk competition from Samsung et al - competition which has kept each competitor on their toes and driven the sector to producing fantastic, largely affordable products. 

So I’m unhappy about a ruling which risks creating a monopoly in a market which otherwise seems to be working and I’m worried about access to patent justice for all but the world’s largest tech giants.

But I’m also wondering if the US federal court sitting in San Jose hasn’t missed a critical point here.  A Samsung Galaxy S is not a clone of an iPhone, nor is a Glaxy Tab a clone of an iPad.

Just one month ago Judge Birrs ruled in the UK Patent's County Court that Samsung didn’t copy Apple, ordering Apple to publicly apologise to Samsung for making the claim in the first place.

There’s far more to Birrs’ ruling than the apology.  His decision seems to centre on the huge differences in approach between Apple and Samsung, the former being seen as ‘cooler’ and therefore having a USP in the market that Samsung simply didn't even try and emulate.

Despite similarities in the user interface, Apple and Samsung provide two very different offerings. 

Android phones aren’t as a rule locked to using apps from one source.  The two phones have varying build quality.  With a Samsung you can swap the battery or increase the available storage by plugging in a memory card.

Consumers are driven by a complex mix of factors and there’s enough clear space to separate the two companies’ offerings to preclude the finding - the emotive language of Apple’s counsel - that Samsung had stolen all of Apple’s hard work.

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